I'm a non-US citizen (not living in the US) wondering how the at-will employment works in practice together with the protected classes. (So my question is for pure curiosity, I don't have a concrete problem.)

I read about these topics many times on this site, but this question is mostly based on this Answer and this Article.

My understanding so far is something like this: At-will means that anyone can be fired any-time ("don't come to work from tomorrow") for any reason, except for their age/race/gender/religion...

I can interpret this in two ways: (The examples are purposely science-fiction like in order to not offend anyone.)

1. The concrete "attributes" (<-- is this the right word?) of the employee do not matter as long as the employer does not state that they are the reason for terminating the employee.

E.g. let's say the employer is racist and ageist against purple skinned people over 202 years old and wants to fire an otherwise hard-working and honest employee only because of this. The employer will just state a made-up reason in this case (or does the at-will employer have to state any reason at all? can they just say "thanks, I don't need you from tomorrow"?)

How do the exceptions for classes protect the employee then? (Or are there employers foolish enough to be racist/ageist/... and state that as a reason for firing someone?)

2. The concrete "attributes" of the employee matter. I can imagine the law goes something like this then (again, made up examples):

  • age is a protected class: if an employee over 202 years old is fired, assume that was due to discrimination unless proven otherwise (if they were younger than that, assume no discrimination) -- this snippet from the cited article makes me think so (emph. mine): age (especially over 40)
  • skin color is a protected class: if an employee with purple or orange skin is fired, assume that was due to discrimination, unless proven otherwise (for other skin colors assume no discrimination)
  • citizenship: if an employee with citizenship of one of these countries is fired, assume that was due to discrimination, unless proven otherwise (for other countries, assume no discrimination)

... etc. you get the idea

But if it works like this, wouldn't employees of protected classes be able to easily abuse the system? ("I'm a 203-year old orange-skinned employee from Nowherania. I will come in late every day, hardly work at all, but if you dare to terminate me, I'll cry discrimination.")

And I understand from the linked article, that the employer can still gather evidence and fire the lazy 203-years old based on that and (maybe) not get a lawsuit. But even then, wouldn't that be unfair towards the 201-year old green-skinned employee from Anywherion, who can be let go with just a single "thanks, we don't need you from tomorrow", because his "attributes" are outside the protected classes?

  • 2
    As an example, if you are laid off, and you are gay, that on its own doesn't give grounds of suspicion that you were laid off because you are gay. If three others are laid off at the same time, and they are not gay, you have no chance. If three others are laid off at the same time, and they were all gay, employment lawyers will fight to get your case. – gnasher729 Aug 29 '20 at 12:17
  • @gnasher729 So, if I understand correctly it is rather #2, i.e. the concrete values of those attributes do in fact matter. (In other words: if you are straight and laid off, it does not really affect you, if the others who are laid off are also straight or not, correct?) – Attilio Aug 29 '20 at 14:25
  • No. Because they might have been laid off because they were straight. Say for instance the employer sends out a company wide email saying that they needs to lay off 3 employees, and the preferred employees to lay-off are purple, gay and over 200 respectively because they were hired most recently (last week before the satellite office was destroyed by an act of god), but because of fears of discrimination lawsuits the company will be laying off 3 straight men picked at random. That would almost guarantee a discrimination lawsuit (chosen because of two protected characteristics). – jmoreno Aug 29 '20 at 16:40
  • @jmoreno Would be interesting to see an example of this... – Studoku Aug 29 '20 at 23:16
  • @Studoku: here’s an example of a male suing and the company settling. mcknights.com/news/…. Except for age, you can’t discriminate against the young, the laws are written in neutral language, and with millions of people not being hired, there’s plenty of opportunity for discrimination suits, valid or not. – jmoreno Aug 30 '20 at 11:47

Overall that's rather complicated and also the actual practices vary a lot from state to state even between at-will states.

First of all: any company CAN fire whoever they want at any time AND anyone who gets fired can in return sue for wrongful termination, discrimination, harassment, etc.

What the laws really govern is the set of rules by which a termination is determined "justified" or not, and what the burden of proof for each party is. For example documentation requirements for the company are higher for firing a protected employee then a regular one. For example, if there is layoff in Massachusetts the company must provide any departing employee over a certain age a list of all people with job title and age that are also laid off. The employee can then look at the list and try to determine whether this is discriminatory or not.

There is no "absolute" protection for any class. There are perfectly legal reasons to fire anyone, such as misconduct, illegal behavior, performance issues and business reasons. Trivial example: if a company goes under, everyone gets fired, protected or not. It's pointless to sue a company that doesn't exit anymore.

  • 1
    But with "at will" it sort of is an intelligence test. Fire someone in a protected class WITHOUT given a reason that relates to this class. Or fail the test and open yourself to a lawsuit because of being too stupid to come up with a reason that is not protected. – TomTom Aug 29 '20 at 23:40

Not the answer you're looking for? Browse other questions tagged .